Share this article:

Polsinelli - Labor and Employment Polsinelli - Labor and Employment


December 2014


Whose Email Is It Anyway? NLRB Substantially Limits Restrictions on Employee Use of Employer-Owned Email Systems







For more information about this alert, please contact:


Stan Hill




Mark Nelson




To view a full list of our Labor and Employment Professionals, click here.


To learn more about our Labor and Employment practice, click here.


View Polsinelli documents on JD Supra  


LinkedIn Twitter Facebook Inside Law Podcast Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook. Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook.



On December 11, 2014, a three-member majority of the National Labor Relations Board significantly limited how employers may control employee use of employer-owned email systems. In Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014), the majority overturned the Bush-era precedent that "employees have no statutory right to use the[ir] Employer's e-mail system for Section 7 purposes." Register Guard, 351 NLRB 1110 (2007). The Board "adopt[ed] a presumption that employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions." Although the majority's holding was confined to employee use of email systems, the majority's reasoning may be extended to any employer-owned communications devices or systems, including text messages on employer-owned smart phones.

Under Purple Communications, employees have the right to use company-owned email systems for the full spectrum of concerted activities for mutual aid or protection protected by Section 7 of the National Labor Relations Act on nonworking time. Such concerted activities include not only traditional union organization, but also discussing wages and other terms and conditions of employment with coworkers. Protected concerted activities also include communications between employees and unions or attorneys through employer-owned email systems.

Member Johnson's 32-page dissent characterizes the majority ruling in Purple Communications as a "sweeping new rule that interferes with an employer's well-established right to restrict employee use of its property based on convenience." Given its far-reaching impact and complete reversal of precedent, the Purple Communications decision will likely be appealed to a federal court. Meanwhile, however, the NLRB and its Administrative Law Judges are free to apply Purple Communications to employers that place over broad content-based restrictions on communications through company-owned email, including bans on all nonworking time email communications.

Employers should promptly examine their communications policies for compliance with the new standard in Purple Communications. Communications policies that either expressly prohibit protected concerted activity or potentially chill such activity are subject to being challenged as unfair labor practices. The NLRB will likely construe communications policies as strictly as social media policies, finding any ambiguous language to potentially chill the exercise of Section 7 rights.

Employers retain the right to prohibit employees from using employer-owned devices and email systems during work time and for unlawful purposes, such as harassment of co-workers, defamation, and trade secret misappropriation. A close review of communications policies by experienced counsel will ensure that legitimate business interests are served without violating the expanding scope of protected Section 7 activities.

For More Information

If you have any questions regarding this alert, please contact:











Atlanta  Chattanooga  Chicago  Dallas  Denver  Edwardsville  Jefferson City  Kansas City  Los Angeles  New York
Overland Park  Phoenix  St. Joseph  St. Louis  San Francisco  Springfield  Topeka  Washington, D.C.  Wilmington








real challenges. real answers.SM  
Polsinelli is a first generation Am Law 100 firm serving corporations, institutions, entrepreneurs and individuals nationally. Our attorneys successfully build enduring client relationships by providing practical legal counsel infused with business insight, and with a passion for assisting General Counsel and CEOs in achieving their objectives. Polsinelli is ranked 18th in number of U.S. partners* and has more than 740 attorneys in 19 offices. Profiled by The American Lawyer and ranked as the fastest growing U.S. law firm over a six-year period**, the firm focuses on healthcare, financial services, real estate, life sciences and technology, energy and business litigation, and has depth of experience in 100 service areas and 70 industries. The firm can be found online at Polsinelli PC. In California, Polsinelli LLP.

* Law360, March 2014
** The American Lawyer 2013 and 2014 reports







Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Copyright © 2014 Polsinelli PC.

Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook. Polsinelli